Commonwealth v. Hernandez: Your Cell Phone is an Instrument of Crime and What This Means for Stalking, Harassment, and PIC Charges in Pennsylvania

Pennsylvania's Superior Court just handed down a decision that impacts social-media stalking or harassment cases. In Commonwealth v. Hernandez, the Court tackled three issues that come up constantly in these cases: whether a cell phone can be an "instrument of crime," whether repeated contact across multiple platforms supports multiple counts, and how the merger doctrine applies when stalking and harassment charges arise from the same conduct.

The Facts

Between 2019 and 2021, Ken Santos Hernandez repeatedly contacted a woman through Facebook and Instagram after she rebuffed his interest in dating her. When she blocked him, he created new accounts and kept messaging her. The messages escalated to include threatening language, nude photos, and sexually explicit videos. A jury convicted him of two counts of stalking (one for the Facebook conduct, one for the Instagram conduct), two counts of harassment (same platform breakdown), and one count of possessing instruments of crime (PIC) — the "instrument" being his cell phone.

Hernandez didn't make things easy on himself along the way — he cut off his GPS monitor and skipped the rest of his own trial, was later arrested on new charges in another county, and got himself removed from his sentencing hearing for talking over the judge. None of that helped his appeal, but the legal issues he raised are worth examining on their own merits.

Issue 1: Is a Cell Phone an "Instrument of Crime"?

Hernandez argued that a cell phone used to send harassing messages is no different from a pen used to write a threatening letter — a tool that merely facilitates communication, not a true instrument of crime. He leaned on Commonwealth v. Williams, where the Superior Court held that a walkie-talkie used to coordinate drug sales wasn't an instrument of crime because it only facilitated the underlying offense rather than being the means by which the crime itself was committed.

The Court rejected the comparison. It distinguished Williams from Commonwealth v. Vida, an older case holding that a paint stick used to spray graffiti was an instrument of crime, because the stick itself was the means of committing the criminal mischief. Here, the Court reasoned, Hernandez's phone wasn't just facilitating the stalking and harassment the way a getaway car facilitates a robbery — it was the actual device through which he transmitted the threatening and lewd communications that constituted the offenses. That put it on the Vida side of the line rather than the Williams side.

Notably, the Court went out of its way to limit this holding. In a footnote, it flagged concerns raised in earlier concurrences about how broadly the PIC statute could be read if courts aren't careful — the worry that virtually any communication device could become an "instrument of crime" any time it's used to send an unwanted message. The Court expressly limited its ruling to the facts of this case, cautioning that using a phone during a crime won't automatically support a PIC conviction in every fact pattern. For defense counsel, that footnote is worth keeping in your back pocket — it's an invitation to argue that the use of a phone in the commission of an offense doesn’t constitute the Possession of an Instrument of Crime.

Issue 2: One Platform, One Count — or More?

Hernandez also argued that his conduct across Facebook and Instagram should have been charged as a single course of conduct, not split into separate counts per platform. The Court didn't reach the merits directly because it found the argument waived — Hernandez never raised the "duplicative charges" theory at the preliminary hearing or in his motion to quash, and it's the appellant's burden to show where an issue was preserved below.

But the Court addressed it anyway, and the answer would have gone against Hernandez regardless. Relying on Commonwealth v. Leach, the Court reaffirmed that each act within a course of conduct can support an independent stalking count, and that repeated harassment on two separate platforms, over an extended period, can support separate charges for each platform.

Issue 3: Merger — Stalking and Harassment Are Not the Same Thing (Except When They Are)

This is the part of the opinion with the most practical bite for sentencing arguments. Hernandez raised merger on two fronts:

Stalking-Facebook merging with stalking-Instagram, and harassment-Facebook merging with harassment-Instagram. The Court said no. Under 42 Pa.C.S.A. § 9765, merger only applies when charges arise from a single criminal act. Using two different platforms to commit two different rounds of stalking and harassment are separate criminal acts, so separate sentences on each were proper.
Harassment merging into stalking. Here the Commonwealth actually agreed with Hernandez, and the Court did too. Citing Commonwealth v. Cruz and the older Commonwealth v. Reese, the Court reaffirmed that harassment is a lesser-included offense of stalking when both arise from the same conduct — meaning the statutory elements of harassment are entirely subsumed within stalking. Because Hernandez's harassment convictions were based on the exact same communications underlying his stalking convictions, those sentences should have merged. The Court vacated the sentences on both harassment counts.

Since Hernandez’ sentences for Harassment and Stalking were run concurrent, this did not impact his overall sentence.

PIC and Cell Phones: The Takeaway

This case sets forth precedent that the use of a cell phone as the means of communicating threatening, lewd or harassing content can support a PIC conviction.

If you are facing charges of Stalking or Harassment, you need an experienced criminal defense attorney who can For a free consultation, please call the Zuckerman Law Firm LLC at 412-447-5580 for a free consultation.